When entering into marriage, few of the spouses think about how they will further divide their property. Naturally, lovers do not even want to think about situations that will force them to enter into lengthy litigation, leading to the sharing of all that they will be able to acquire over the years of marriage. But, as statistics show, every third marriage comes to divorce and property disputes. Most of them all begin and end in court. Few of our compatriots are well aware of Russian law allowing the division of property without a divorce. This situation is quite rare and not common in our country. Although in recent years, lawyers and judges are increasingly faced with situations about the division of jointly acquired property without a divorce. Therefore, today we devoted a whole article to talking about it, where we collected the most relevant and useful information for you.
Co-acquired in marriage: explanation of wording
Many newlyweds believe that common property includes such large purchases as real estate or, for example, a car. But in fact, this is not so, because from the moment of painting in the registry office, the partners have common property. This category may include gifts for the wedding ceremony, wages and much more. In the future, every purchase made in the marriage, regardless of whose money it was made into, becomes common property. In addition to things, this also applies to cash and pair accounts.
Interestingly, the phrase "joint ownership" enables each of the partners to dispose of it without the permission of the other. For example, a husband has every right to calmly sell a car purchased over the years of marriage and registered for it. Also, the wife gets the opportunity to withdraw money from the bank account and spend it as she sees fit. However, in cases involving registration or certification of documents in a notary's office, the permission of the second spouse is an indispensable condition for the transaction itself.
Partners at any period of their lives have the right to file for the division of property - without a divorce, in its process or after it. However, do not forget that common ownership does not negate such a thing as “personal property”. This is worth talking in more detail.
Personal property
Russian law clarifies that each spouse has the right to personal property. It is impossible to apply the rules for the division of property in marriage without a divorce or in its process. After all, everyone can dispose of it at their own discretion. If you want to use the personal property of your spouse, then ask for his permission. Only if agreed, you can take this or that thing.
What can be attributed to personal property? Newlyweds and people who have been married for many years have difficulty determining the boundaries of this formulation. Although in fact, everything is quite simple. So, personal property can be considered that:
- was acquired prior to marriage;
- received as a gift during marriage;
- is part of the inheritance.
Also in this category falls, for example, clothing, accessories, jewelry (excluding luxury goods).
Keep in mind that personal property cannot be shared. The only exception is the fact that it was recognized by the court as joint property. This happens in rare cases when, over the years of marriage, spouses have significantly increased the cost of a thing that relates to a personal one. For example, a husband or wife inherited a small house that does not have great value in the real estate market. Being married, they repaired it, installed water and connected the gas. Over time, he turned from an old pimped into a cozy and well-groomed cottage. In this case, during the division of property (without a divorce, or, for example, after a divorce proceedings), the house received once in the inheritance, in which so much common funds and efforts were invested, can be recognized as jointly acquired property and divided between the spouses.
Property sharing: situations
As we have said, most couples begin to share the good even at the stage of the divorce process. Most often, a lawsuit is filed in court in parallel with the application for the division of jointly acquired. In such a situation, the judge decides immediately on two claims, based on the evidence provided by each of the spouses. Please note that earning does not matter in court. For example, a woman who did not work in marriage, but only kept a household, also has the right to half of everything she has acquired over the years of married life.
Some couples initiate a divorce without sharing property. An application to the court about the fate of a particular item from the category of “jointly acquired” can also be submitted three years after the end of the marriage. The law provides for such situations, and in recent years, they are increasingly found in court cases. Indeed, spouses often get divorced, experiencing negative emotions for each other, and therefore they cannot adequately assess the need for certain things.
Interestingly, the division of property without a divorce can begin even a day after the conclusion of an official marriage. Russian law does not limit spouses in these rights, but do not forget that the process of sharing jointly acquired between husband and wife applies only to those items that are currently in the family. If you managed to divide the property without applying for a divorce, then everything bought in the future, again, becomes your common property. In the event of property disputes, these things will be subject to the rules of the section according to the Family Code.
Many are interested in the purpose for which it is possible to divide property of spouses without a divorce. Russian law provides for three objective reasons that may push the couple to these actions.
Reasons for the implementation of the section
Of course, different situations happen in life. But if we open the Family Code, then the following reasons for the division of property without divorce will be clearly indicated in it:
- single spouse initiative;
- the desire of both partners;
- activity of creditors.
The latter reason is becoming more and more common in cases of sharing the acquired money in marriage, because by law both partners can have their own obligations, including to banks. But if there are problems with payments, the creditor will file for the arrest of all that the spouses have. In this case, one who has nothing to do with the financial obligations of his second half can be filed for division of property without a divorce. Thus, the family will retain part of the marriage acquired over the years.
Also often the idea of sharing property arises when spouses think about inheritance after themselves. The need for such actions is caused, for example, by the desire of the husband and wife to leave certain objects to their children. In this case, even after a written testament between the heirs, disputes may arise, they have the right to protest the will and request a share of the common property. However, if the spouses make a division of the property and draw up a will on objects belonging only to them, then legal disputes will simply be excluded.
The procedure for the division of property
If you are married and plan to produce a section jointly acquired over many years, then you can solve the problem in two ways:
- in a voluntary agreement;
- in litigation.
The first option involves the preparation of a marriage contract or a voluntary agreement. The second method involves filing a lawsuit in accordance with the established form. In the following sections of the article, we will examine in detail each of the options mentioned above.
Division of property without divorce and trial: marriage contract
Many people know that a marriage contract can be drawn up at any time at the request of the spouses. Most often it is concluded before the registration of marriage obligations, but this document is equally relevant in the process of cohabitation. In any case, the marriage contract resolves all contentious property issues between the spouses.
Interestingly, in recent years, cases of drafting documents on the division of property between people who are already married have become more frequent. This is usually associated with a business owned by one of the spouses. There are cases when both husband and wife have their own sources of income, which should remain their personal property, regardless of marital status. In this case, the marriage contract will help to solve all future emerging problems.
Marriage contract features
Quite often, the reason to conclude a document on the division of property is the intention to take a mortgage loan. The fact is that banks, after numerous precedents with divorce of borrowers, began to practice the preparation of marriage contracts, according to which the future apartment falls into the ownership of one of the spouses. He is a responsible borrower. In the event of a divorce and problems with monthly payments, the bank will only file a claim with one borrower and resolve all issues with it.
Keep in mind that the marriage contract is concluded with a notary. In this case, only the spouses themselves can determine what is jointly acquired property. Things or real estate acquired after signing the document is common. However, the husband and wife may, while drawing up the contract, predetermine the ownership of a property, taking into account the source of the money spent on its purchase.
Voluntary Property Sharing Agreement
Our compatriots perceive the voluntary agreement as some kind of alternative to the marriage contract. However, this document may not be certified by a notary, it will be valid after signing by both parties.
If the voluntary agreement includes real estate or vehicles, then be sure to resolve issues with the renewal of documents for these properties. This will save you from possible future problems.
Division of property through a court without a divorce
It is worth noting that people who are married most often do without lawsuits. After all, they do not plan to end their relationship and quarrel over material issues. However, sometimes it is difficult to do without a lawsuit, therefore such a solution to the issue is also quite common in our country.
First of all, before drawing up a claim, it is necessary to determine the composition of the property. One of the spouses should describe him, conduct a preliminary assessment and determine the shares. All this must be indicated in the lawsuit, but your half in case of disagreement can file a counterclaim or challenge it directly during the trial, passing the objection in writing to the judge.
Many things cannot be divided, so shared ownership is determined on them. In relation to the rest of the property, the judge proceeds from the one who initiated this or that purchase, whose money was used for it, and which of the spouses needs it more.
Drafting a lawsuit: sample
Many spouses who plan to share property through a court turn to professional lawyers to file a lawsuit. And this is the right approach, because a specialist will be able to take into account all the nuances of a future business and suggest how to evaluate jointly acquired over the years of marriage. But this help costs some money, which may not be found in every family.
If you plan to initiate a division of property without a divorce, the sample application below will help you navigate when preparing a document.
Conclusion
It is worth mentioning that one of the spouses who does not want to divide the acquired wealth can file their own lawsuit for the division of debts. According to the Family Code, the debts of two people living in a marriage are divided equally. Be prepared for the fact that the division of property of spouses without a divorce can lead to a similar situation. Therefore, try to negotiate with your husband or wife peacefully.